Your Lying Eyes

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29 June 2009

My Ricci Prediction

Today is supposedly the day the Supreme Court will hand down its decision in the firefighter reverse discrimination case, Ricci v DeStefano. Steve Sailer is asking for predictions - I posted mine, which was as follows:
I'm going out on a limb and predict 7-2 to overturn. Souter and Breyer will concur on remanding, basically to determine if there is sufficient evidence in favor of the test's objectivity to require a trial. Scalia, Thomas, Alito and Roberts will concur, but vote to overturn the "disparate impact" rule altogether. Kennedy's concurring opinion will be the prevailing one, which will argue for a convoluted set of standards as to when and how disparate impact tests should and should not preempt any other considerations, which rules will somehow clearly favor Ricci et al but somehow not too clearly favor anyone else.

The NYT will then point out how this opinion only buttresses Sotomayor's "mainstream" credentials and further demonstrates her thoughtful and reserved jurisprudence.
The likely fatal flaw in my prediction is that I am basing it on the oral arguments, which showed some serious discomfort with New Haven's actions even among Breyer and Souter. Since to get around this mild discomfort all they need to do is send it back to the appeals court with instructions to look further into the issue of whether New Haven should have gone to trial, I expect they'll do that. A 7-2 decision will be a strong rebuke of Sonia Sotomayor's pro forma rejection of the firefighters' claims, and that will give Republicans a little more maneuvering room, but not much else.

But I was shocked by the school stip-search decision, since in oral arguments there seemed little sympathy for the plaintiffs argument (if not her plight) but it went 8-1 in her favor, so I'm not too confident in this prediction. But perhaps the conservatives going along with the moderate liberals on that one is a sign of some compromise going the other way on Ricci. We shall soon see.

26 June 2009

Michael Jackson, RIP

Well, that was certainly a shock - and surely closes out a very important chapter in the history of popular music. Though I must confess I wasn't crazy about his newer stuff (defined as everything after "Candy Girl").

25 June 2009

Court: School Strip Searches Unconstitutional

This was a shocker for me, based on the oral arguments. The Justices, up and down the line (with the exception of Ginsburg, of course) seemed highly skeptical of the notion that they should be second-guessing school officials trying to enforce school rules. So an 8-1 decision against the school was quite surprising. But it was the lone dissenter, Justice Thomas, who made the most sense.

Now I have to admit that when I first read about this case - a 13-year old girl having to pull out her underwear for a school nurse's inspection because the vice-principal suspected she was concealing Ibuprofen - my initial reaction was that if it were my daughter this happened to I'd have been in big trouble after storming into the school and making some kind of deranged scene. So my sympathies go with the girl and with the majority's decision in her favor.

But my real problem is with school policies towards drugs. I don't believe it should be the job school officials to supervise the medications of students. If students are abusing drugs in ways that cannot be readily detected (as by the smell of alcohol or the sight of them smoking or by observing them acting in a drugged manner) then there's nothing a school official can or should do about it. There's no reason kids with valid medical needs should suffer or be inconvenienced because of the irresponsibility of other students.

But if we are going to have these stupid rules, then school officials should be able to enforce them. Stupid rules lead to unreasonable actions - that's just inevitable. And school systems are highly democratic institutions (outside of NYC) - people vote for their school boards, who make policy.

Thomas starts with the premise that the school's drug policy and its efforts to enforce it are reasonable - the same premise behind the the majority's decision. If it is reasonable for the school to search for the pill in the first place, how is it not reasonable to search in a likely place of concealment - the girl's undergarments? Thomas cleverly notes:
Redding would not have been the first person to conceal pills in her undergarments...Nor will she be the last after today’s decision, which announces the safest place to secrete contraband in school.
He has the most fun with Ginsburg's claim in her dissent that the girl's being made to sit in a chair outside the principal's office for two hours and then being searched without her parents being called constituted an abuse of authority.
The suggestion that requiring Redding to sit in a chair for two hours amounted to a deprivation of her constitutional rights, or that school officials are required to engage in detailed interrogations before conducting searches for drugs, only reinforces the conclusion that the Judiciary is ill-equipped to second-guess the daily decisions made by public administrators.
Sonia Sotomayor is often compared to Thomas, as they were both "affirmative action" nominees, both having gone to Ivy League schools no doubt based on preferential admissions policies and both were chosen for the job primarily because of their race. But she will be a very different justice. Thomas never asks questioins during oral arguments, but his writing is quite elegant. Sotomayor is rather obstreperous from the bench, and rather clumsy with the pen. Try as they might (and they try awfully hard), the Times' reporters can't quite make the woman come off like a Latina Oliver Wendell Holmes. In an article on Sotomayor's one judicial foray into the question of whether the death penalty unfairly targets minorities, she is quoted questioning the defense:
As my law clerk said to me the other day, what is the remedy? Should we just have more people sentenced to capital punishment? That’s as effective a remedy as having fewer people sentenced to capital punishment if we find that we need to remedy some overall societal inequity.
Now you and I might find that bit of wisdom barely worthy of a high-school debate team, but if you're a reporter for the NY Times it's an example of her being "deeply engaged, vocal and demanding, scrutinizing both sides and sometimes floating provocative ideas." I stand by my position on her nomination: conservatives have little to fear from her presence on the court - Obama could have done a lot more damage.

16 June 2009

O-man's Got It All Figured Out

What we need is a federal Consumer Protection Agency - yeah, that's the ticket!
A new consumer-protection agency pushed by President Barack Obama would have wide powers to regulate financial products used by millions of Americans, potentially spanning mortgages, credit cards, annuities and even basic bank accounts.
This key to the recovery, Obama tells us. What would it do to help?
The new agency will have the power to enforce fair-lending laws and the Community Reinvestment Act, which had traditionally been overseen by federal bank regulators. This could put more pressure on banks to make more loans to low-income borrowers.
Of course! That's exactly what we need to do to get us back on the right footing - force banks to lend even more to poor people.

Reporters Without Shame

Otherwise known as the White House Press Corps. NPR's Scott Horsley may have achieved greatness today in that category this evening. He typically covers matters like Obama's health care proposals or his pick for the Supreme Court. These stories allow Horsley to swoon under a pretense of objective reporting. But today he covered a trip by local kids to the White House garden "planted" by Michelle Obama. Amidst Iranian elections, North Korean militancy, an imploding nation to our south, a continued world-wide recession, it's good to know Scott Horsley, crack reporter for NPR, could uncover such an important story to tell his listeners. Of course, this is exactly the kind of story your typical NPR listener craves - I shudder imagining all those skinny, grey-haired Presbyterian ladies squirming in their seats over this latest bit of Obamagasm. Go on - have a listen - it's not to be believed (or rather, it's all too believable).

06 June 2009

National vs. Family Loyalty

How does loyalty to one's country relate to loyalty to family? Do they conflict, or do they go hand-in-hand, or are they orthogonal?

The World Values Survey asks a couple questions that seem like decent proxies for these concepts. One asks "When jobs are scarce, employers should give priority to [one's countrymen] over immigrants?" Indeed, this very issue caused quite a stir earlier this when a "Buy American" provision was inserted into the U.S. stimulus bill. Europe, in particular, was quite upset. While not preferring jobs for one's countrymen over immigrants might not necessarily indicate disloyalty to one's country, it certainly suggests an elevation of certain concepts (like free-trade or international relations) above a visceral sense of national loyalty.

The other question asks respondents if they agreed that "One of my main goals in life has been to make my parents proud"? While most everyone wants to make their parents proud (83% agree worldwide), those who do not strongly agree apparently have other things in mind than family pride when pursuing a career.

It turns out these values correlate pretty closely - 59%. The data can be viewed here. But it's interesting to see which countries fall where:Western Europe (along with the Anglosphere) tend to score low on both national and family loyalty. East Asians are similarly less concerned about family expectations but are more nationalistic. Sub-saharan Africa has the highest levels of family pride, while Muslim countries score very high in national loyalty. In between are Eastern Europe, Latin America and Southeast Asia.

As far as preference for co-nationals over immigrants, you can't really tell if it's actually national pride at work here or a more tribal chauvinism. Are Rwandans, for example, really looking out for Rwandans, or Tutsis/Hutus? If so, these very high levels of both family and country loyalty could reflect the "Big Man" syndrome in Africa, in which a successful man will bring his parents and immediate family fame and respect, but also a great responsibility of patronage to the tribe as a whole. The very high levels of national loyalty among the Arab/Muslim countries is also consistent with strong tribal/ethnic affiliations in these societies.

And while the U.S. scores low on this compared to the world at large, it is indeed on the rightward fringe among the developed world, consistent with the "Buy American" push in this recession.

03 June 2009

Canis sensilis

John Tierney has an interesting article in the Times on animal feelings, in particular the feeling of regret. Your opinion of whether or not animals - higher mammals, especially - are capable of real feelings is probably a lot like your opinion of whether children are socialized to act like boys or girls or whether they come out of the womb acting that way - if you've got a dog, you've no doubt he has feelings.

Skeptics typically claim that dog owners are anthropomorphizing instinctive animal behavior when they empathize with their pets. But where do they think the emotions we feel came from? Particularly the deeply felt, difficult to control feelings like pride, shame, anger, sadness, joy, love - do they think these mental states just sprang up spontaneously when Homo sapiens emerged 200,000 years ago, to be then instinctively felt universally by all people (except among a small number, who we therefore consider pathological)?

Obviously, these mental states must have developed in other mammals first as a way to encourage or discourage certain behaviors (bravery, cooperation, discipline, protection of family, play, child-rearing). And if your dog behaves in a way that looks just like these emotions feel, isn't it rather likely that that's what he indeed is feeling? Why would it be that these mental states in humans have meaning but the same observed behaviors in animals mean nothing? Clearly, either the feelings of animals mean something, or those of humans mean less than we think.

02 June 2009


Is Sonia Sotomayor "brilliant"? Is she exceptionally intelligent? I have my doubts.

The New Republic's Jeffrey Rosen broached the topic in early May in an obvious attempt to encourage Obama to seek a more impressive liberal jurist, but to no avail. Rosen, of course, has been pilloried for his reporting (he had the nerve to use "anonymous sources"!). This paragraph from Rosen's article seems to sum up the issue well:
The most consistent concern was that Sotomayor, although an able lawyer, was "not that smart and kind of a bully on the bench," as one former Second Circuit clerk for another judge put it. "She has an inflated opinion of herself, and is domineering during oral arguments, but her questions aren't penetrating and don't get to the heart of the issue."

The WSJ printed an excerpt from the oral arguments from the Ricci reverse-discrimination case where Sotomayor aggressively questions the lawyer for Ricci (via Steve Sailer):
JUDGE SOTOMAYOR: Counsel ... we're not suggesting that unqualified people be hired. The city's not suggesting that. All right? But there is a difference between where you score on the test and how many openings you have. And to the extent that there's an adverse impact on one group over the other, so that the first seven who are going to be hired only because of the vagrancies [sic] of the vacancies at that moment, not because you're unqualified--the pass rate is the pass rate--all right? But if your test is always going to put a certain group at the bottom of the pass rate so they're never ever going to be promoted, and there is a fair test that could be devised that measures knowledge in a more substantive way, then why shouldn't the city have an opportunity to try and look and see if it can develop that?
Ok, so it's off the cuff so we're not exactly expecting the Gettysburg Address. But that "vagrancies" - that's a bit of a red flag, no?

Some hint at her limitations can be gleaned from reading between the lines of a fawning NY Times analysis of Sotomayor's written opinions by Adam Liptak. He notes that her opinions "reveal no larger vision, seldom appeal to history and consistently avoid quotable language." As Steve Sailer has noted, Obama himself is a master at "avoiding quotable language," the better to confound those who would use such quotes against him, and this worked out well as little of the race-obsessed worlview he propounded in Dreams ever made the news. Would a judge though wish to avoid quotable language in her opinions? Isn't that the currency of fame and respect in the legal profession - to have one's opinions be referenced and quoted? Could she be so clever that she would avoid quotable language as a strategy to avoid confirmation controversies should she be nominated to the big show?

Liptak goes on: "Judge Sotomayor’s decisions are, instead, almost always technical, incremental and exhaustive, considering all of the relevant precedents and supporting even completely uncontroversial propositions with elaborate footnotes." Another way to phrase it would be that her opinions are an uninspired, haphazard mash of precedent and citation, however remotely relevant, that fail to form a coherent legal theory to support her decision. And the part about "supporting even completely uncontroversial propositions with elaborate footnotes" suggests that she is heavily reliant on her clerks' drafts - and the lack of a "larger vision" suggests she does little more than compile her staff's labors rather than synthesing their research into a more comprehensive opinion.

Now I have no doubt that she is "smart" in any conventionally understood definition of the term. She was valedictorian of her high school class - granted, a parochial school in the Bronx. She also graduated Summa cum Laude from Princeton - again, granted, as a history major in a school also graduating physics majors. (I can find no evidence she graduated "second in her class" as many - including Obama's press secretary - have claimed.) So I do accept that she is "smart," but given that both these achievements can easily result from a combination of smart and conscientiousness, I'm seeing no evidence of "brilliant" or "highly intelligent."

What about the Pyne Prize she received at Princeton, which has been touted as evidence of her superior intellect?. Here's the article from the Princetonian announcing the winners of the Pyne Prize in 1976, which she shared with another student that year.

Regarding her co-winner, David Germany*, the Princetonian dwells on his academic excellence. "The Pyne Prize is not the first recognition of Germany's scholarship-he has won both the Freshman First Year Honor Prize for the highest grades during freshman year and the Class of 1939 Princeton Scholar Prize for the highest academic standing prior to senior year...Today, his transcript shows 21 A+s and 9 A's...An economics major, Germany has been employed as a teaching assistant in upper-level economics courses."

But regarding Sotomayer, the article only obliquely discusses her academics. "Sotomayor, a history major, has maintained almost straight A's for the last two years, but is especially known for her extracurricular activities." Any remaining notions that the Pyne Prize is solely (or even predominantly) awarded on academic excellence should be disabused by Princeton's president's own description of the prize:
President Bown said the selection process is a detailed one, involving interviews with department chairmen, faculty and students who have had contact with nominees. 'We try our best to find people who excel,' he said. There are no set criteria for the prize, Bown added, saying, 'There are many ways to contribute-sometimes not through any organized method.'

Again - I'm not saying she's not smart, but Rosen's article appears to me well justified. She will look foolish attempting to go toe-to-toe with Scalia (or Roberts and Alito, for that matter - see this comparison of Sotomayor's vs. Alito's "lawyers' evaluations") and may well embarrass liberals with her off-target questioning. Her strident manner seems unlikely to endear her to Justice Kennedy - I'd say the opposite is more likely. Conservatives should be relieved that a more imposing candidate was not nominated - and if that question quoted above is any indication, we just might be treated to some amusing little malaprops from the bench to keep us entertained over the next couple decades.

* Mr. Germany apparently parlayed his academic success into a lucrative career as a big-time money manager.